Conclusion

2019 ◽  
pp. 252-258
Author(s):  
Martin S. Flaherty
Keyword(s):  
International Relations ◽  
Supreme Court ◽  
Executive Branch ◽  
Foreign Affairs ◽  
Federal Judiciary ◽  
The Supreme Court ◽  
Legislative Branch ◽  
Wrong Direction

This concluding chapter concedes that, in many of the areas considered, on certain issues the federal judiciary has already proceeded perilously far in the wrong direction. Justice Jackson's opinion in Youngstown helps explain why, citing the distinct advantages of the executive in particular in asserting foreign affairs powers in a dangerous world, especially given a subservient legislative branch. The executive's advantages, moreover, may be even more ominously robust than Jackson supposed, and not just because of the nature of modern international relations. The combination of aggressive executive and supine Congress has for some time reached into the composition of the Supreme Court itself. Typical among recent appointments are candidates with executive branch experience and an ensuing commitment to judicial deference to the president, especially in foreign affairs.

Restoring the Global Judiciary

2019 ◽  
Author(s):  
Martin S. Flaherty
Keyword(s):  
Foreign Policy ◽  
International Relations ◽  
Supreme Court ◽  
Separation Of Powers ◽  
Fundamental Rights ◽  
Foreign Affairs ◽  
The Past ◽  
Federal Judiciary ◽  
The Supreme Court ◽  
Global Affairs

In the past several decades, there has been a growing chorus of voices contending that the Supreme Court and federal judiciary should stay out of foreign affairs and leave the field to Congress and the president. Challenging this idea, this book argues instead for a robust judicial role in the conduct of U.S. foreign policy. The book demonstrates that the Supreme Court and federal judiciary have the power and duty to apply the law without deference to the other branches. Turning first to the founding of the nation, the book shows that the Constitution's original commitment to separation of powers was as strong in foreign as domestic matters, not least because the document shifted enormous authority to the new federal government. This initial conception eroded as the nation rose from fledgling state to superpower, fueling the growth of a dangerously formidable executive that today asserts near-plenary foreign affairs authority. The book explores how modern international relations makes the commitment to balance among the branches of government all the more critical and considers implications for modern controversies that the judiciary will continue to confront. At a time when executive and legislative actions in the name of U.S. foreign policy are only increasing, the book makes the case for a zealous judicial defense of fundamental rights involving global affairs.

Holding Steady

2019 ◽  
pp. 67-90
Author(s):  
Martin S. Flaherty
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
International Law ◽  
American History ◽  
Separation Of Powers ◽  
Foreign Affairs ◽  
Individual Rights ◽  
Federal Judiciary ◽  
The Supreme Court ◽  
Constitutional Tradition

This chapter contends that for much of American history, constitutional tradition confirmed the Founders' basic commitments about separation of powers, foreign affairs, and the courts. In particular, the Supreme Court and the federal judiciary more generally played their part as originally envisioned. That meant, among other things, fulfilling their assigned roles of checking both Congress and the president, not to mention the states, in the service of protecting individual rights under both domestic and international law. These general patterns, moreover, persisted though the mid-twentieth century. However, the chapter makes its case mainly though a consideration of certain landmark controversies and decisions that are nonetheless representative. These cases suffice to confirm the overall fidelity of subsequent constitutional tradition to the Constitution's initial vision.

scholarly journals The Role of the Supreme Court in a Democracy

1999 ◽  
Vol 33 (1) ◽  
pp. 1-12 ◽  
Author(s):  
Aharon Barak
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Checks And Balances ◽  
Equal Status ◽  
The Third ◽  
The Supreme Court ◽  
Legislative Branch ◽  
The Law ◽  
The Relationship

There are three constitutional branches: the legislative branch, the executive branch, and the judicial branch, and they are the product of our constitution, our Basic Laws. They are of equal status, and the relationship between them is one of “checks and balances”. This system is designed to assure that each branch operates within the confines of its authority, for no branch may have unlimited powers. The purpose of checks and balances is not effective government; its purpose is to guarantee freedom.In this system of powers, the task of the judicial branch is to adjudicate conflicts according to the laws. For that purpose, the judicial branch has to perform three principal functions. The first is concerned with determining the facts. From the entirety of the facts, one should determine those facts which are relevant to adjudicating the conflict. The second function is concerned with determining the law. The third function is concerned with applying the law to the facts, and drawing the appropriate judicial conclusion.

Saying What Foreign Affairs Law Is

2019 ◽  
pp. 190-219
Author(s):  
Martin S. Flaherty
Keyword(s):  
International Relations ◽  
Supreme Court ◽  
International Law ◽  
Foreign Affairs ◽  
The Supreme Court ◽  
The Law

This chapter undertakes much the same task regarding foreign affairs matters that arise once a case has been accepted for review. Here, easily the most threatening potential wrong turn has concerned potential judicial deference to the executive's interpretations of agency regulations, international law, statutes, and the Constitution itself. In each of these areas, the pressures have grown only stronger for courts to cede their responsibility to say “what the law is” to executive officials, on the grounds of their supposed superior grasp of foreign affairs over judges. At times the Supreme Court, and courts below it, have bowed to such arguments. Yet in a series of landmark cases in the wake of 9/11, the Court has remained true to its constitutional role. This chapter relies throughout on the trilogy of Founding pledge, overall tradition, and international relations context to commend the justices' fidelity and contend that, if anything, they have not been steadfast enough.

Judicial Power in a Political World

2012 ◽  
Author(s):  
Justin Crowe
Keyword(s):  
Supreme Court ◽  
Political Rhetoric ◽  
Democratic Politics ◽  
Judicial Power ◽  
The Political ◽  
Institution Building ◽  
Political Arena ◽  
Federal Judiciary ◽  
The Supreme Court ◽  
The Relationship

This concluding chapter synthesizes the book's main findings about the architectonic politics of judicial institution building and contextualizes them within contemporary debates. It also reflects upon the lessons of the more than 200-year historical lineage of the institutional judiciary for our understanding of judicial power in America. More specifically, it considers the place of the federal judiciary in America's past and future in empirical and normative terms, respectively. It argues that both political rhetoric and academic exegesis about the Supreme Court embody a fundamentally incorrect presumption about the judiciary being external to politics, and that such presumption leads to a series of misconceptions about the relationship between judicial power and democratic politics. The chapter offers a conception that not only locates the judicial branch squarely within the political arena but also places substantially greater emphasis on its cooperation rather than conflict with other actors and institutions in that arena.

Part II Institutions and Constitutional Change, C The Courts, Ch.10 The Supreme Court of Canada and Appointment of Judges in Canada

2017 ◽  
Author(s):  
Dodek Adam ◽  
Way Rosemary Cairns
Keyword(s):  
Supreme Court ◽  
Constitutional Change ◽  
Supreme Court Of Canada ◽  
Institutional Diversity ◽  
Federal Judiciary ◽  
The Supreme Court ◽  
Democratic Ideals ◽  
Federal Judges ◽  
Transparency And Accountability

This chapter explains the constitutional status of the Supreme Court of Canada with attention to the Court’s composition, jurisdiction, and procedure. The chapter discusses the Supreme Court’s 2014 decision in Reference re Supreme Court Act, ss 5 and 6 and considers whether and how that decision limits Parliament’s authority to make changes to the Court. Both the process for appointing Supreme Court of Canada justices and the process for appointing other federal judges to the country’s superior courts are explained. The authors argue that both appointment processes are inconsistent with democratic ideals of transparency and accountability. They examine the emerging scholarly and professional consensus on the importance of institutional diversity on the bench, and conclude that the continuing lack of diversity in the federal judiciary raises legitimate political and constitutional concerns.

scholarly journals Federalists, Federalism, and Federal Jurisdiction

2012 ◽  
Vol 30 (1) ◽  
pp. 205-244 ◽  
Author(s):  
Alison L. LaCroix
Keyword(s):  
Supreme Court ◽  
Party System ◽  
The United States ◽  
Federal Courts ◽  
Federal Judiciary ◽  
Early National ◽  
The Supreme Court ◽  
History Of ◽  
Federal Jurisdiction ◽  
Political Turmoil

Historians and legal scholars generally agree that during John Marshall's tenure as chief justice of the United States Supreme Court from 1801 to 1835, the federal judiciary expanded its power to interpret the Constitution and asserted with increasing force its authority to speak on behalf of the Union. This single story of judicial nationalism, however, contains two distinct and largely non-overlapping strands. Historians have tended to focus on the Supreme Court alone, to the exclusion of the lower federal courts, and have largely treated early national controversies over the lower federal courts as outgrowths of the political turmoil that accompanied the emergence of the first party system. Legal scholars in the fields of federal courts and constitutional law, meanwhile, have devoted significant attention to the lower federal courts but have largely neglected the history of how those courts developed beyond the key early moments of the Constitutional Convention and the First Congress.

The Documentary History of the Supreme Court of the United States, 1789-1800. Vol 4: Organizing the Federal Judiciary: Legislation and Commentaries.

1994 ◽  
Vol 80 (4) ◽  
pp. 1450
Author(s):  
Kermit L. Hall ◽  
Maeva Marcus ◽  
James C. Brandow ◽  
Robert P. Frankel ◽  
Stephen L. Tull ◽  
...  
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Federal Judiciary ◽  
Documentary History ◽  
The Supreme Court ◽  
History Of

scholarly journals The Practice of Introducing Restrictions on the Right to Freedom of Peaceful Assembly within Administrative Proceedings and the Place of the Judicial Branch of Power in Determining the Admissibility of Such Restrictions

2020 ◽  
Vol 90 (3) ◽  
pp. 162-176
Author(s):  
М. А. Самбор
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Constitutional Court ◽  
Administrative Discretion ◽  
The Supreme Court ◽  
Executive Agencies ◽  
Administrative Proceedings ◽  
The Right ◽  
Legal Understanding

The author has researched the practice of the executive branch of power of Ukraine in establishing a collective (general) ban and restriction of the right to freedom of peaceful assembly under quarantine, as well as the place and role of the judicial branch of power represented by the Supreme Court and the Constitutional Court of Ukraine in determining the constitutionality of such restrictions and prohibitions. The powers of the Supreme Court on the constitutional submission to the Constitutional Court of Ukraine on the constitutionality of the Resolution of the Cabinet of Ministers of Ukraine “On quarantine to prevent the spread of acute respiratory disease COVID-19 caused by coronavirus SARS-CoV-2 and stages of weakening of anti-epidemic measures” dated from May 20, 2020 No. 392 on the establishment of a ban on the exercise of the right to freedom of peaceful assembly within administrative proceedings during the introduction of quarantine in Ukraine, as well as the justification of such a constitutional submission. It is important to analyze and form a legal understanding of the Decision of the Constitutional Court of Ukraine on the unconstitutionality of restricting and prohibiting the exercise of the right to freedom of peaceful assembly during quarantine within administrative proceedings – by adopting the relevant resolution by the Cabinet of Ministers of Ukraine, which was the result of administrative discretion of the highest agency in the system of executive agencies of Ukraine. In this regard, the study focuses on the motivation and validity of the decision of the agency of constitutional jurisdiction and understanding of those legal and social values that were the basis for the judges of the Constitutional Court of Ukraine while adopting the decision dated from August 28, 2020 No 10-r/2020.

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